Saudade of the constitution: The relationship between constitutional and criminal law in the European context
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
| DOI | http://doi.org/10.1177/2032284419840438 |
| Subject Matter | Special Issue: Articles |
Special Issue: Article
Saudade of the constitution:
The relationship between
constitutional and criminal
law in the European context
Ad´
an Nieto Mart´
ın
University of Castilla-La Mancha, Spain
Abstract
This article examines the relationship between the constitution and criminal law. The relationship
between criminal law and constitutional law has been the subject of much attention by doctrine in
several European Union countries. However, in view of the jurisprudence of the Constitutional
Courts and the European Courts, they have not served to constitute an effective limit for the
legislator. In particular, the article examines the case law relating to the principle of
proportionality.
Keywords
Proportionality principle, multilevel constitutionalims, constitution and criminal law, principles of
criminal law, ultima ratio
1. When we look at the recent developments of the criminal law from the point of view of
constitutional principles, we might e xperience what the Portuguese call saud ade.This
feeling cannot be expressed in any other language; it is a mood, or maybe a state of mind,
somewhere in between sorrow and melancholy. In the p resent instance, the feeling of
saudade comes from the little success of fundamental rights in real life, aside from scho-
larly works on criminal law, when it comes to stopping the wave of massive use of criminal
law that we now have to confront.
Criminal law scholars of our generation, at least in countries such as Spain, Italy, Portugal or
Germany, grew up thinking that the Constitution and constitutional courts were going to be a
strong weapon against legislative irrationality. In particular, we all had great expectations in the
proportionality principle. As the German Constitutional Court stated the principle in its famous
Corresponding author:
Ad´
an Nieto Mart´
ın, University of Castilla-La Mancha, Ciudad Real, Spain.
E-mail: Adan.Nieto@uclm.es
New Journal of European Criminal Law
2019, Vol. 10(1) 28–33
ªThe Author(s) 2019
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DOI: 10.1177/2032284419840438
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